NEW ORLEANS (CN) — An attorney for Mississippi on Wednesday told the Fifth Circuit that the crux of a voter redistricting case comes down to whether black voters in a given district have a lesser chance of electing the candidates of their choice than the nonblack minority in the district.
“A district court decided that a black voting majority has less opportunity than a nonblack voting minority,” Mike Wallace told the panel judges. “But that’s wrong as a matter of math.”
Wallace said that Mississippi District 22, a 120 mile-long stretch through the Delta, has 13 black senators instead of 14.
“I don’t deny that that’s an injury, but it’s definitely not the shutout that this court was addressing [in previous cases],” Wallace said.
Still, the Fifth Circuit agreed to rehear the case en banc, after a three-judge panel heard it last year.
In 2017, a sophomore at the University of Mississippi who had just finished reading about voting rights pulled out a map of legislative districts in Mississippi, and District 22 stood out.
District 22 was created through redistricting in 2012. The student, John Chappell, began writing down the voting precincts in the district and noting their racial demographics. Then he compared similar demographics of precincts in neighboring districts.
Being familiar with the Voting Rights Act of 1965, Chappell knew something was not right about District 22.
“There was obviously a demographic line being cut so that you can move the population in ways that’s advantageous to, in this case, white candidates,” Chappell told the newspaper Mississippi Today in a story published March 27, 2019. “What makes the Voting Rights Act so revolutionary is that it’s about results, not intent. All you have to show is the results being racially discriminatory.”
Over the next two days, Chappell redrew the district to conform with federal law. Then he emailed his new map to the Mississippi Center for Justice, and within a few weeks a federal lawsuit was drafted challenging the makeup of District 22, a district comprised of black voters who were on average poorer than those throughout the state and white voters who were wealthier than average.
The federal lawsuit was brought by plaintiff Joseph Thomas, a black former candidate for state Senate, and two voters.
In March 2019, U.S. District Judge Carlton Reeves ruled that Senate District 22 violated the Voting Rights Act because it “does not afford the plaintiffs an ‘equal opportunity to participate in the political processes and to elect candidates of their choice.’” Reeves ordered District 22 to be redrawn.
The state appealed and the matter came almost immediately before the Fifth Circuit. A three-judge panel affirmed Reeve’s decision 2-1 in a March 25 ruling by Fifth Circuit Judge Gregg Costa, an Obama appointee, joined by Judge James Dennis, a Clinton appointee.
The state Senate came up with a plan to move African American voters from the Delta-based District 13 to District 22 to comply with Reeve’s order. The result of the move raised the African American voting age population in District 22 from 50.77% to 58.13%. In District 13, the black voting age population fell from 69.27% to 61.84%.
Fifth Circuit Judge Edith Brown Clement, an appointee of George W. Bush, wrote in dissent that Reeves not only shifted the African American voting age population with his redistricting plan, “he also managed to move something important out of District 22 in the process. Namely, the two Republican challengers to [plaintiff] Thomas for the 2019 election.”
Clement’s dissent continued: “The majority says that Judge Reeves’ plan is ‘narrowly tailored.’ Agreed — it is ‘narrowly tailored’ to win Thomas the election.”
In November, Thomas did narrowly win the Senate seat, against a Republican incumbent.
Clement’s dissent ended with her expressing disappointment that the case had come before a “majority-minority panel.”
Judge Costa’s majority opinion addressed Clement’s concerns about Thomas unfairly winning against the Republican incumbent: “One final comment,” Costa wrote, “is necessary to set the record straight in response to the dissent’s attack on the remedy. It irresponsibly insinuates that the district judge — whom it takes the unusual step of repeatedly naming — drew new lines with the aim of eliminating partisan opposition to plaintiff Thomas. That is not true. Importantly, the incumbent state senator in District 22 had decided not to run for reelection before the district court ruled in this case.”
Jon Greenbaum, an attorney for the plaintiffs, told the Fifth Circuit on Wednesday that although “cracking” — one feature considered an indication of gerrymandering — had not been alleged in the lawsuit, evidence of cracking could be found in District 22.
District 22, he said, is a large area, predominantly black, predominantly poor, and it was redistricted with a white area that was predominantly wealthier and white.
But Fifth Circuit Judge Edith Jones, a Reagan appointee, disagreed.
“Eventually, you cherry-pick the whole state and you destroy the whole map,” Jones said.
In an emailed statement after the hearing, Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, said: “Despite a majority of the merits panel rightly concluding that the boundaries of Senate District 22 violated Section 2 of the Voting Rights Act and the completion of the last election to be held under the legislature’s reconfigured plan in November of last year, the Fifth Circuit has decided to rehear what was essentially a closed case. We are now left with long, protracted litigation to resolve voting rights violations, both big and small.”
The judges did not indicate how or when they will rule.